Danielle Smith’s confusing referendum rhetoric

Well, we’ve all had a few days to think about Alberta Premier Danielle Smith’s decision to hold a referendum in the fall on Alberta separation.

And that referendum is, well, a head-shaker of the first degree.

Her logic goes like this: a court said that holding a referendum on Alberta separation without the required consultation with First Nations was unconstitutional and could not go forward. Smith says the judge is flat-out wrong, but that appealing the decision could take too long, so her government will deliberately circumvent the judge’s decision by holding a referendum asking if the province should hold a referendum on starting the process towards independence.

In Smith’s own words in a provincial address, “Because this proposed referendum question does not directly trigger separation, but if successful, would ask Alberta’s government to commence the legal process necessary to hold a binding referendum on the matter, the recent court ruling would not be applicable, and the referendum question I outlined could proceed.”

Smith argues that 700,000 Albertans signed petitions asking for a referendum — even though 400,000 of those signees actually signed a petition explicitly requesting no referendum — and therefore, democratic voices must be heard.

When is holding a referendum not holding a referendum? Apparently, in Smithworld, it’s when you hold a referendum on holding a really binding referendum. Which isn’t really binding, because Alberta’s Referendum Act says the government cannot be forced to violate the Constitution, by say, failing to consult with First Nations.

(Side note — judges really love it when you publicly announce, “I don’t like what your decision says, so I’m just going to work around it.”)

There are huge risks here: one is that Albertans, faced with the referendum-within-a-referendum question, will decide it’s safe to stay home and not vote on the first go-round. Alternately, some Albertans may decide that it’s a great way to register a protest vote to Ottawa without actually risking leaving. Either would give a skewed impression of public support for the separation process — yet another example of Smith always making decisions that move the referendum process forward, while she and her party support staying in Canada.

Watch the actions, not the rhetoric.

But worse, in this whole mess, is the part that Smith is also muddying: that somehow, the duty to consult with First Nations only applies to major projects. Because any separation would necessarily affect established treaty rights, any separation talks require the government of Alberta to consult with First Nations — and section 35 of the Constitution requires that.

The Alberta government has not consulted with First Nations about the latest referendum process, even though an earlier decision by the Alberta Court of King’s Bench said quite clearly “First Nations, as founding partners in the creation of Alberta, cannot be ignored or bypassed as Alberta contemplates its future whether that is as part of Canada or not.”

Manitoba Premier Wab Kinew made that point at a meeting of western Canadian premiers earlier this week, and it’s helpful that he did that directly and clearly and right away, just as Smith was arguing that, somehow, the decision claimed the verdict said petitioners were told by court they had to consult with First Nations.

“That is not correct, a lot of what you just said there, Premier Smith. … It is not up to the petition gatherers to fulfil the duty to consult. It is up to you, as the Alberta government, to fulfil the duty to consult,” Kinew said.

Fair play.

Because too much of political stickhandling right now involves throwing out false or misleading information with the hope that it will create a lasting first impression and never be successfully challenged.